Right ruling on Vioxx suit

The New Jersey Supreme Court made the right decision this week in ruling that a union health care plan cannot join other insurance plans in a class-action lawsuit against Vioxx, the painkiller that Merck took off the market three years ago because of safety concerns.
Two lower courts had given the go-ahead to the International Union of Operating Engineers Local 68 Welfare Fund, based in Essex County, for a class-action suit that could have involved thousands of health plans and could have crippled Merck.
As the Supreme Court noted, however, New Jersey law designed class-action suits as a remedy for individuals who were personally affected by some problem and who might otherwise not have their day in court.

The status should not apply to union and private insurance plans. They paid for Vioxx prescriptions for members, not all of whom had problems after taking the drug.
In some cases, they may have benefited. Those circumstances, however, do nothing to diminish the right of individuals who think they were harmed by Vioxx to sue, as more than 27,000 people have.
Nor does it change the fact that very early on researchers warned of a cardiovascular risk for at least some people taking the drug, and Merck and the Food and Drug Administration did not pursue those warnings as vigorously as they should have.
The justices referred one question back to the lower court: Did Merck dupe the health plans, as the welfare fund claims? Critics say the company designed an aggressive marketing campaign to boost sales while sidestepping questions about safety.
The welfare fund said it would not have covered Vioxx if it had known the risks. For economic reasons, some health plans restrict the choice of medication for various health conditions and may have denied enrollees coverage of other drugs in favor of Vioxx.
As public concern about Vioxx grew, several big health plans severely restricted payment for the drug. The economic impact of those decisions may have had more to do with Merck's recall than any actions by the FDA.
Vioxx is a good example of why the FDA needs more power, including the ability to enact penalties with enough economic sting to enforce its orders.
Litigation has its place when it comes to holding corporations accountable for what they do. Lawsuits are an after-the-fact solution, however.
Stronger and more vigilant regulation, not litigation, will do a better job of restoring confidence in the pharmaceutical industry, protecting the pockets of the health plans -- and saving lives.